Standing Committee A

[Mr. Alan Hurst in the Chair]

Crime (International Co-operation) Bill [Lords]

Clause 3 - General requirements for service of process

Amendment proposed [this day]: No. 9, in 
clause 3, page 3, line 1, leave out from 'Kingdom' to 'that' in line 2 and insert 
 'and where there is any indication or evidence'.—[Mr. Paice.]
 Question again proposed, That the amendment be made.

Alan Hurst: I remind the Committee that with this we are taking the following:
 Amendment No. 10, in 
clause 3, page 3, line 6, leave out 'an' and insert 'the'.
 Amendment No. 11, in 
clause 3, page 3, line 6, at end insert 
 '(and, if different, a language that he has reason to believe the person on whom the process is to be served understands)'.

James Paice: I welcome you to the proceedings, Mr. Hurst. I am advised that my only words in my contribution before we adjourned were, ''The point is''. The point is that the purpose of the amendments is to deal with the issue of whether or not people understand the appropriate language, and in private conversation afterwards—I do not think that I am giving away too much—the Minister accused me of dancing on a pin on the difference between the phraseology in the Bill and that in the convention. There is a third form of phraseology, too. He will find that what he said was also slightly different. I would be delighted if I were able to dance on a pin. I never had such agility, even in my youngest days, and certainly not at my present age.
 All Committee members will agree that it is important that the person in receipt of the process from a British court fully understands everything in it, including its meaning, its implications and what he or she should do about it. I remain unconvinced about the need for the phraseology in the Bill to be different from that in the convention, but I shall not pursue the matter and make a great fuss. There is much more to deal with this afternoon.

David Heath: I ask the hon. Gentleman to indulge in more pin dancing.
 I have read the clause again during the adjournment. There is nothing in it that would get the translation to the person who is required to receive it. Unlike the Scottish version in clause 5, in which the prosecutor is required to send the copy of the translation in parenthesis to the person on whom it 
 is served, elsewhere in Britain it only goes to the court. Will the hon. Gentleman reflect on that?

James Paice: The pin becomes smaller.
 The hon. Gentleman has alighted on an even smaller point than I made. Nevertheless, I shall consider it quickly. I admit that I had other things to do during the adjournment, but I respect his commitment to studying every nuance of the Bill. He is correct. The relevant provision simply says that if a person does not understand English, a translation is to be given to the court. That seems a little odd. Perhaps the Minister will consider that again. That is not the purpose of my amendments, however, so I cannot pursue the matter at great length.

Lady Hermon: The hon. Gentleman is making a valid and valuable point, especially as it is supported by the Human Rights Act 1998, with which he will be most familiar. Under article 6, everyone in this country is entitled to a fair trial. That specifies that
''Everyone charged with a criminal offence has the following minimum rights . . . to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him''.
 Whether or not the hon. Gentleman is dancing on a pin, he is making a valid point about the proper understanding of the charge against a defendant.

James Paice: I am grateful for the hon. Lady's support. Although I was accused of dancing on a pin, what I was saying was important. Our debate has recognised that. As the hon. Lady rightly said, it is part of the human rights measures that are enshrined in legislation. I think that the Minister has taken the message on board. I hope that he reflects seriously on everything that has been said, including the point made by the hon. Member for Somerton and Frome (Mr. Heath) about whether the translation should be given to the court or to the person who should read it. I shall leave the Minister to reflect on that interesting argument. Does he wish to intervene?

Bob Ainsworth: I am a little loth to intervene, but we now have red herrings dancing on pins, and that is problematical. The hon. Gentleman is worried why the notice is to be served by the court. It is an order to put responsibility on the court that is applying for the process to be issued in the first place. We must remember that the clause applies to a process that is issued
''for the purposes of criminal proceedings by a court in England and Wales''.
 The court wants the process to be served, so it should ensure that it is served in an appropriate language. The court must have the responsibility to ensure that that is the case. If the person is abroad, there will be many circumstances in which English is not the appropriate language. It must be the responsibility of the court that is asking for the process to be served to ensure that it is served in a way that can be understood.

James Paice: That was a semi-helpful intervention.

David Heath: It was not.

James Paice: It was particularly robust of the hon. Member for Somerton and Frome to say that the
 intervention was not helpful. The Minister was trying to be helpful. However, we have ample meat for when the Bill returns to the House of Commons on Report. We cannot pursue the argument of the hon. Member for Somerton and Frome along the lines of the amendments that we have debated today, but it was an important point. In the light of our discussions, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Heath: I welcome you to the Committee, Mr. Hurst.
 What did the Minister mean in his intervention? It is true that process is a result of court proceedings. However, it is clear from the wording of clause 3(3) that the person who requests the issue is the prosecutor—possibly, the defending barrister—in the court proceedings, not the court itself. There is a difficulty, so I hope that the Minister will reconsider the provision. I am sure that it is not a practical difficulty, because it is obvious that it is intended that the court should cause the translation to be sent to the person on whom the process is served. However, the Bill does not say that. It says that the prosecutor or defending counsel, or whoever is making the request, makes it to the court, along with a translation. I am asking the Minister not to enter into a debate, but to consider the matter further. Perhaps he can discuss it with his advisers. What he asserts is not what the clause says. A mismatch between the intention and the letter of the law always worries me.

Bob Ainsworth: The situation seems clear to me. I must admit that I did not spend the entire lunch break examining clause 3(3), but I will do as the hon. Gentleman suggests and re-examine the matter. I only hope that it does not dominate our proceedings on Report, which will set the House of Commons alight in no uncertain terms.
 We are dealing with when proceedings in a court in England, Wales or Northern Ireland lead to the application for the process to be issued to someone abroad. In those circumstances, the person who is asking the court to do that must inform the court whether he knows that there is a problem with language and must provide the court with a translation. That puts a responsibility on the people from whom the requests originate. It gives the court the opportunity to get to know the facts and to ensure that the notice being served is in an appropriate language. That has not been problematical in the past 13 years, and the provision is a lift from existing legislation. I will do as the hon. Member for Somerton and Frome says, but I am not sure that anything fruitful will come of it. 
 Question put and agreed to. 
 Clause 3 ordered to stand part of the Bill.

Clause 4 - Service of process otherwise than by post

David Heath: I beg to move amendment No. 118, in
clause 4, page 3, line 23, leave out from 'Kingdom' to end of line 24 and insert 
 'by any method which is in accordance with Rules of Court'.

David Heath: The amendment deals with the vagueness in the wording of clause 4(1), which reads:
''Process to which section 3 applies may, instead of being served by post, be served on a person outside the United Kingdom in accordance with arrangements made by the Secretary of State.''
 In terms of legal process, that is extraordinarily vague, but I think that it is that way for a purpose, and there may be many circumstances in other countries that cannot reasonably be anticipated. However, the rules governing service of process in the UK are clearly set out in rules of court, and one would expect, if not the same rules of court to apply, then at very least that the Secretary of State would consider that the broad categories of alternatives that might be permissible within the legal system should be set out in the rules of court. Otherwise, we are effectively throwing away both legal control and, through the fact that the issue is a matter for resolution of the House of Commons, democratic control of the process. Perhaps ''process'' comes into these debates too often, and in too many different senses; we are talking about the process of process, or the way in which process is served. 
 There must be some ground rules to ensure compatibility with human rights legislation—that was mentioned by the hon. Member for North Down (Lady Hermon)—and many other things if we are to avoid challenge. That is not because there is no obligation to comply; clearly, the matter is not open to challenge in the first instance. However, once someone has come back to this country as a result of process being served, and has possibly had further processes served on him or her as a result, or has received a requirement to appear in court in the United Kingdom, the issue of whether that process was acceptable might be open to challenge, if there were no rules to govern it.

Lady Hermon: To help the hon. Gentleman with the point he is making, he will, I am sure, know that 13 years ago under the Criminal Justice (International Co-operation) Act 1990, which he mentioned this morning, the words
''in accordance with arrangements made by the Secretary of State''
 appear. Could the hon. Gentleman inquire of the Minister what arrangements were made by the Secretary of State to serve process during those 13 years?

David Heath: That is a helpful suggestion, but I am sure that the Minister will tell us is that no problems have ensued. That will often be the case; the previous legislation has not created a great number of legal problems. I am happy that that is so, but that does not reduce our requirement, in giving the Bill proper scrutiny, to consider the matter, including whether the provisions might cause a possibility of challenge in future. If there are ways of avoiding that challenge, it is sensible for us to use them and to adopt a different
 wording, if appropriate. Perhaps the Minister could satisfy the hon. Lady on that point, and say what arrangements have been used, whether they would have been in accordance with rules of court had they been applied, and how often those exceptional circumstances arise. At the very least, the Minister could give a few examples for the benefit of the Committee.

Bob Ainsworth: Welcome to the Chair, Mr. Hurst. You have arrived at what might be a rather unfortunate time. This is certainly one of the most exciting Bills that we have had to deal with.
 The amendment is not acceptable. It would require documents, when not served by post, to be served in accordance with rules of court rather than with arrangements made by the Secretary of State. Specifying arrangements in statute, whether in rules of court or in any other form, has the potential to cause problems. Not specifying them has the advantage of flexibility, which it is important to retain, because different arrangements might be suitable in different circumstances. 
 Documents destined for countries not designated as participating countries for the purposes of the clause will be sent to the Secretary of State, who will send them to the central authority in another country, which will serve them on the recipient. There may also be other arrangements. For instance, in the case of EU-bound documents, the issuing authority will send them to the overseas central authority for onward transmission, either by post or personal service, depending on its particular requirements. Alternatively, the issuing authority might send the documents to the Secretary of State, who will send them on to the overseas central authority, again for onward transmission from that authority either by post or personal service. 
 There will inevitably be occasions on which an issuing authority will send documents to the Secretary of State in error when direct service would have been the correct route. We intend that in those circumstances, the Secretary of State will simply forward the documents directly to the recipient overseas. We would not want a situation where a statutory provision required him to send the documents back to the issuing authority because they had been sent to him incorrectly, when the simple and far more sensible solution would be for him to forward them himself. To set out such an option in statute, however, risks giving the impression to issuing authorities that it is acceptable to send all documents to the Secretary of State, as he will do the work of routing documents overseas for them. That will encourage issuing authorities not to bother using the correct procedure, which is undesirable. 
 We will need to issue updated guidelines for this clause and the rest of part 1, advising authorities on how to send procedural documents overseas. Guidelines are attached to existing legislation, but changes have been made so they will need to be updated. Guidance will therefore be provided on how people should perform their duties. To enshrine that 
 methodology in statute, however, would lead to unnecessary inflexibility in the issuing of process.

David Heath: I thank the Minister for his comments, although many of them seemed to address an issue that I did not raise: whether the clause should stand part. I did not question whether the clause should stand part; I simply suggested that rather than having the wishy-washy phrase of
''arrangements made by the Secretary of State'',
 that should be incorporated into the rules of court. That is hardly a radical suggestion, as it already exists for the serving of process in this country. I accept that there needs to be greater flexibility when dealing with overseas countries, but it is not acceptable for something to be stuck on a tree at the end of the road rather than sent by post. That would not be an acceptable serving of process. I would have hoped for some minimal standards that it is incumbent on the Secretary of State and others to meet in the service of process.

Bob Ainsworth: If we do not do that in guidance, how does the hon. Gentleman expect us to have the flexibility that he acknowledges is needed when dealing with authorities abroad?

David Heath: Rules of court could easily lay out basic issues about the way in which process could be served.

Bob Ainsworth: In guidance?

David Heath: Yes. The Minister can write the guidance. If he can do that, why cannot that be incorporated in rules of court? I genuinely do not understand what the Minister's problem is with this, although I do not propose to press the amendment to a Division. If the Minister intends to write guidance, why should that be different in kind from the circumstances that would apply within the United Kingdom, and why should it therefore not be set out in rules of court—in general terms, because extra flexibility is needed for serving a process overseas, but with basic caveats that ensure that no one is disadvantaged legally as a consequence?
 The Minister has not responded to the point raised by the hon. Member for North Down. That is unsatisfactory. The civil service could have provided better substance to the Minister's remarks on this amendment. He did not address the issue that I raised either. It cannot have been a surprise that I raised it, because it was already addressed in another place in Committee, with an equally unsatisfactory conclusion. 
 I do not intend to proceed with this matter now, but I may have to return to it at a later stage, unless we get a more satisfactory response in the meantime. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

James Paice: I beg to move amendment No. 12, in
clause 4, page 3, line 31, leave out 
 'there are good reasons for thinking' 
 and insert 
 'the Secretary of State is satisfied'.

Alan Hurst: With this it will be convenient to discuss amendment No. 13, in
clause 4, page 3, line 32, leave out 'or is inappropriate'.

James Paice: Moving on a little from the previous amendment that the hon. Member for Somerton and Frome spoke to, these two amendments address subsection (3)(c). The first of them addresses the phrase, ''good reasons for thinking''. We had a debate this morning about odd language that seems to be creeping into legislation. I am not against the modernisation of legislative language, but some of it seems incredibly woolly. To state that one of the conditions that prevents service by post is
''that there are good reasons for thinking that service by post will not be effective or is inappropriate''
 begs this question: who thinks they are good reasons? What is the lodestar by which these reasons will be judged? 
 If we are to have arrangements laid down by the Secretary of State—as the Minister has persuaded the Committee, at least at the moment—we should adopt the same type of language that is used everywhere else in legislation and state that 
''the Secretary of State is satisfied''
 that service by post will not be affected. That does not mean that the Secretary of State will have to deliberate on every case. We all know that the phrase ''the Secretary of State'' also refers to his appointees and senior officials. However, that statement would be more precise than the woolly, 
''there are good reasons for thinking that service by post''
 is ineffective. 
 In the other place, there was a debate on another Home Office Bill, now the Nationality, Immigration and Asylum Act 2002, in which the word ''thinks'' was originally included. There was a long discussion about that, which resulted in the Government conceding by getting rid of that word and replacing it with ''satisfied that''—believe it or not. That is much more acceptable. 
 I hope that the Minister will look at this again, and accept the precedent that has been set in the other place on that legislation, as 
''there are good reasons for thinking''
 is a nebulous concept. That should be rephrased to state that 
''the Secretary of State is satisfied that''
 service by post would be ineffective. That is a clear, precise statement and gives someone the responsibility for making the decision. 
 Amendment No. 13 is a probing amendment that would change the next line in the clause. Perhaps the Minister could tell us what difference there is between something that is not effective and something that is inappropriate, at least in the context of serving of process, about which we are talking. As we have said earlier on other groups of amendments, all Committee members are interested in ensuring that a British process from a British court is served properly. There will be occasions on which it is not possible to serve a process by post, for various reasons including the reason given in subsection (3)(a), 
''that the correct address of the person is unknown''.
 According to subsection (1), the Secretary of State will lay down arrangements for dealing with that. There must be good reasons for the Secretary of State to be satisfied that service by post will not be effective. That is what matters. We are concerned about whether the service is effective and whether the person on whom the process or document is to be served actually receives it.

Peter Kilfoyle: I am quite taken by the words ''good reasons''. Does the hon. Gentleman think that those words would provide a charter for lawyers to raise objections to the delivery of the process? Presumably, that could be challenged in the courts.

James Paice: I suspect that the hon. Gentleman is correct. That is why I prefer the words,
''the Secretary of State is satisfied'',
 which is the conventional phrase in such situations. The proposed legislation is full of that and the hon. Gentleman will recognise that that is a more precise statement. The words ''good reasons'' would be wide open to challenge and would be a charter for lawyers to exploit. 
 Similarly, who would decide whether something was inappropriate? The current form of words adds nothing to the clause and it opens up the opportunity for weakness and vagueness. What matters is that service is effective. That is covered in the subsection and I challenge the Minister to explain what the words ''or is inappropriate'' add to the effectiveness of service.

Bob Ainsworth: On amendment No. 12, the Secretary of State will not make the decision about whether a document should be served other than by post. The person requesting the process to be served—the prosecuting authority, for example—will assess whether there are good reasons why service by post would not be effective or appropriate at the time that the process is issued. A prosecuting authority might consider that direct service would be ineffective if it believed that the recipient would refuse to sign for a letter sent by a recorded delivery postal service.
 On amendment No. 13, service by post might be considered inappropriate in cases where confirmation of service is a necessary procedural step in some proceedings. For example, if a document were a summons served on a defendant, personal service would prove that they were aware of the proceedings. In some circumstances that proof may enable the proceedings to commence. 
 The wording in subsection (3)(c) follows that of article 5(2)(d) of the mutual legal assistance convention. That puts the decision-making process about whether the postal service would be ineffective or inappropriate firmly with the requesting state. Ultimately, it is up to the issuing authority to use its discretion. 
 It is not the Secretary of State who will decide whether in a particular case the postal service is effective, but the person who makes the application.

James Paice: If that is so, what arrangements will the Minister make under subsection (1)? It seems that
 under the provision either the Secretary of State is making arrangements for delivery mechanisms other than by post or it will be up to someone else. I cannot see why the Secretary of State is making those arrangements, only for someone else to act differently.

Bob Ainsworth: That is the guidance that will need to be updated to cover the methods that will be used in the case of service for people overseas. The Secretary of State will not involve himself in individual cases. Guidance will be available, and arrangements and facilities will be put in place, but the decision about what is appropriate in each case will be governed by knowledge of the case and the requirement that comes back. As I have said, if it is a summons, personal service will be necessary. It will not be the Secretary of State who will make that decision, but the prosecuting authority that is seeking to use the information in court when it comes back to this country.

Peter Kilfoyle: I am fascinated by what my hon. Friend has been saying. I shall take the example used earlier of Nigeria. Will he tell a simple-minded soul, such as myself, if Nigerians wanted a summons to be delivered in the United Kingdom, would they be the authority that determined how it was delivered in this country? Would they be making the decision that we would then be obliged to follow up?

Bob Ainsworth: The country overseas will request service in a manner that supports the way in which it wants to use the information in the court. If it is a summons, it will need to convince the court that something was received. It would be no use delivering it by post if it believed that receipt would be denied. Unless there are good reasons why we should refuse, we need to try to comply with requests from countries abroad; otherwise, the information that is received will not be in usable form. As I have said, that does not prove an obligation on people in UK law in any way.
 The reverse also applies: we will need to request information in a way that will be usable in our courts. Therefore, it will be for the prosecuting authority in our country to decide whether service by post is appropriate. It will not be for the Secretary of State to decide in each case whether that is the most appropriate method and whether it would be effective. The onus is on the people who are making the application.

James Paice: The Minister has explained clearly that amendment No. 12 is inappropriate because of the different responsibilities of the Secretary of State, as opposed to the court. I give him credit for convincing me on that point, but I am less convinced about the issue of inappropriateness. He argues that the post might not work because a signed receipt of a summons is needed; I should have thought that that was well covered by the phrase ''not effective'', as service would not be effective if receipt was not achieved. Nevertheless, I accept that the Minister has brought back the argument of what is already enshrined in the convention, so I will not pursue that at length. I am grateful for his explanation. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - General requirements for effecting Scottish citation etc.

Question proposed, That the clause stand part of the Bill.

Alistair Carmichael: A number of issues strike me, many of which might have been raised in relation to clause 3. I will take them in turn in the order in which they appear in the Bill. In fairness to the Minister, I do not really expect him to answer my points off the top of his head, but he might be able to do so in correspondence, which could be copied to other members of the Committee.
 I draw the Committee's attention to subsection (4), which refers to 
''citation or issue . . . by the court''.
 Citation is always done at the request of the procurator fiscal. The only occasion that I can think of on which citation is done by the court is in relation to a means court in the event of an unpaid fine, and that is outwith the normal understanding of criminal proceedings. However, it may be that minds have been applied to the problem and have come up with some answer to it. 
 I should be interested to know why subsection 5(a) says: 
''A citation effected outside the United Kingdom . . . must not include notice of a penalty''.
 At first, I thought that that was probably slightly esoteric, because the use of notices of penalty has been extremely rare in Scotland since the passing of the Criminal Procedure (Scotland) Act 1995. However, there are a small number of usually statutory offences for which the notice of penalty still appears on the face of the complaint. Indeed, it would probably be a plea to the relevance of the complaint if the notice of penalty did not appear on the face of it. That is a contradiction, and I should be interested to know, in time, how that will be dealt with. 
 On the question of the citation being effective outside the United Kingdom, subsection (6) mentions that there is 
''no obligation under the law of Scotland to comply with the citation'',
 and the consequential part in subsection (7) states that 
''failure to comply with the citation does not constitute contempt of court and is not a ground for issuing a warrant to secure the attendance of the person in question or for imposing any penalty.''
 How will that work in practice? There is an obvious difficulty. 
 If I commit an offence for which I think I will almost certainly go to jail, the sensible thing to do would be to take myself off to some foreign country where I might well choose to keep the prosecutor informed of my whereabouts, just to ensure that he uses those provisions to serve the complaint or indictment on me. I might then tell the court that it is my intention to plead guilty. Obviously, I could not be imprisoned in my absence, so I would be instructed 
 by the court to appear for sentence. At that point, I might choose to stop co-operating with the court. What is the court to do in such circumstances? The citation having been effective outwith the UK in the first place, the court cannot issue a warrant for my arrest. The proceedings thereafter fall into limbo, and I can return to the United Kingdom cheerfully, thumbing my nose at the court. What is the thinking behind the provisions, and have those points been considered? 
 Again, the language in subsection (7) is unusual. It says: 
''issuing a warrant to secure the attendance of the person in question''.
 We would normally say ''a warrant for the arrest of the person''. Ultimately, the wording is for the purpose of issuing a warrant for arrest, but surely it would make better sense to keep it in line with the accepted terms employed in the criminal courts.

Bob Ainsworth: As the hon. Gentleman acknowledged, he did not really expected me to answer on issues that are to do with the Scottish version of clause 3. We have consulted the Scotland Office and the Scottish Executive on the frame of the clause, but it might be best for me to give the hon. Gentleman a commitment to again consult those with expertise on Scottish law from the Scottish Executive and Scotland Office. Of course, I will copy any reply I give him to other members of the Committee.

David Heath: There is a real problem of process in dealing with Scots law in a Committee in which there are no Scottish Ministers and there is no one else who can give an authoritative view in response to the points raised by my hon. Friend the Member for Orkney and Shetland. That is not a criticism of the Minister; it is just the way that it is. However, it is important not only that matters are transmitted to the Scotland Office for comment, but that Committee members have definitive replies in good time for our discussions on Report so that we have the opportunity to raise any matters that need attention and make further progress when other Ministers and Members with expertise are available.

Bob Ainsworth: I recognise the hon. Gentleman's point, and I shall try to get information to the hon. Member for Orkney and Shetland as quickly as possible so that he can use it on Report if he is not satisfied.
 On the point of fleeing abroad, the provisions relate to getting witnesses to appear in court in this country for serious crimes. Those issues are not covered in this clause or by the measures that we are discussing today, but we would seek extradition for an individual who had committed a crime in this country. I shall return to the hon. Member for Orkney and Shetland as soon as I can to address how we interpret the Scottish legal process. 
 Question put and agreed to. 
 Clause 5 ordered to stand part of the Bill. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Requests for assistance in obtaining

Nick Hawkins: I beg to move amendment No. 17, in
clause 7, page 5, line 14, at end insert— 
 '2(A) A request for assistance under this section shall include information on the procedures regarding the gathering and admissibility of evidence that apply in the part of the United Kingdom where it is proposed that the evidence shall be used, and in particular shall include details of the procedures under which evidence may lawfully be obtained for use in proceedings in that part.'.
 I welcome you, Mr. Hurst, to the chairmanship of the Committee. You and I are veterans of the late night last night—I admired your patience in waiting to listen to the very last speech from the Labour Back Benches on Second Reading of the Courts Bill. 
 I shall deal with this clause briefly, not least because my noble Friend Baroness Anelay of St. Johns canvassed some of the issues in another place. On reading the debate of 13 Janauary 2003 in another place in Hansard, columns 35 to 38, I felt that the response to my noble Friend from the Attorney-General, for whom professionally I have enormous respect—I served on an inner cabinet, which is the general management committee of the Bar Council, when the present Attorney-General was chairman of the Bar—was not satisfactory. 
 Amendment No. 17 would insert new subsection 2(A), which requires there to be the inclusion of 
''information on procedures regarding the gathering and admissibility of evidence''.
 It is important to include that in the Bill because, as Baroness Anelay pointed out, different countries have different procedures and rules on admissibility. She made the further and particularly relevant point that our rules are about to change. 
 My hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and I are very much aware of the work of our hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Woking (Mr. Malins), who lead for the Opposition on the Criminal Justice Bill. Over several weeks, they discussed the contents of that Bill in Committee, and one of the major changes that the Government want to introduce is a change to the way in which our rules of admissibility of evidence operate. The Government are changing many of the things that those of us who qualified as lawyers were taught in leading works, such as Professor Sir Rupert Cross's work on the law of evidence and other principles that have been regarded as the centrepiece of our law for 100 years since the Victorian reforms. In light of that, it is important that the Bill states a clear position, so that authorities of other countries are routinely informed by the UK of what rules will apply to the evidence gathered in those countries once it is in the UK and ready to be used in our investigative and judicial process. 
 The Attorney-General said that there was no international obligation for us to provide that information, and that there was no particular reason 
 to believe in any given case that the court that receives the request from abroad would need that information. He suggested that it would not be sufficiently familiar with existing procedures, and that it might be unable to obtain information about them if it was in doubt. However, admissibility of evidence and the way in which these matters will be dealt with are not minor technical points. 
Mr. Ainsworth indicated assent.

James Paice: I am glad to see that the Minister acknowledges that that is the case. He always addresses these matters seriously, and I am sure that on this occasion he will do so again.
 It would be tremendously helpful and important for the Bill to state a clear obligation. I am sure that the Attorney-General is right that we are not obliged to do that by any international agreements: I do not suggest that what he said in another place about that is inaccurate. However, the fact that something is not required by an international obligation does not mean that it would not be helpful. In this House, we have a duty to ensure that where there are changes to our arrangements, such as those that this law introduces, they take account of the best possible procedures that we could have. 
 The Bill should include something that clarifies the position, even if that is not required by any international obligations. I do not think that that will be an unnecessarily burdensome hurdle. This is an important matter, and I will listen with interest to what the Minister has to say, but I hope that he will understand the serious spirit in which I am putting this forward. 
Mr. Ainsworth indicated assent.

James Paice: The Minister indicates his assent to that, for which I am grateful to him.

Bob Ainsworth: Amendment No. 17 would place an additional requirement on requesting authorities in the UK to provide information on procedures regarding the gathering and admissibility of evidence in the relevant part of the UK. The consequence of the amendment would be that requests could be rejected for not including such information. As the Attorney-General said in the other place, there is no international obligation on us to provide that information, and there is no particular reason to believe that in every case the authority receiving the request would need the information. Requesting authorities already provide that information where they consider it appropriate or where they need particular procedures to be used to make admissible what is received.
 In the other place, the Attorney-General was not saying, ''Let us not do it because we have no obligation to do so.'' What he was trying to say—and what I am saying to the Committee now—is that we have no legal obligation but if we were to include that in the Bill we would provide another hurdle for prosecuting authorities to jump in order to get evidence from abroad. Where they think that that is appropriate, it is in their own interests to seek to say in what form it needs to be gathered for the purposes of 
 UK law, but we need the flexibility for things to continue to be dealt with on a case-by-case basis. The hon. Gentleman's amendment takes that away and makes it an obligation in every case, irrespective of whether it is necessary.

Nick Hawkins: I am unsure whether I was correct in thinking that the Minister was coming to the end of his remarks, but I wanted to intervene on him to give him a chance to address this point. The Attorney-General said, on requesting authorities providing this information where they consider it to be appropriate:
''in many cases, good practice may indicate that they would do so.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC37.]
 If even the Attorney-General, after having stated his main objection that we have no international obligation, went on to say that about good practice, would it not be a good idea to have that good practice—which even the Attorney-General thinks is good practice—in the Bill?

Bob Ainsworth: I agree, of course, that good practice should be followed, and that prosecutors will seek to follow good practice in the issuing of the requests. However, we have no international obligation to do so, first, because that is a fact and, secondly, because if we put such matters in the Bill, a warrant may be received stating that the request is turned down if those circumstances are not met. In each request, it will not be necessary to give detailed explanations of the admissibility of evidence and the way in which it is considered allowable under English law. There will be cases when it is. Good practice should be followed, but flexibility should be allowed. We do not want requests to be turned down without good reason.

Nick Hawkins: The Committee will realise that I am not entirely persuaded either by what the Attorney-General said in another place or by what the Minister said this afternoon. I hope that the hon. Gentleman will continue to consider matters in light of the Attorney-General's concession to my noble Friend, the Baroness Anelay of St. Johns, in another place that good practice may dictate that such practice should usually happen. I hope that the Minister and his officials will reflect that such a provision could be included in the Bill. I know that he is reasonable and will consider matters further on Report and, who knows, we may yet win the battle if the Government tabled an amendment later in our proceedings. However, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 121, in
clause 7, page 5, leave out line 32 and insert— 
 ' ''Designated prosecuting authority'' means: 
 (i) the Attorney General; 
 (ii) the Director of Public Prosecutions; 
 (iii) the Director of the Serious Fraud Office; 
 (iv) the Commissioners of Customs and Excise; 
 (v) the Secretary of State for Trade and Industry; 
 (vi) the Attorney-General for Northern Ireland; 
 (vii) the Director of Public Prosecutions for Northern Ireland; and 
 (viii) any other prosecuting authority designated by an order made by the Secretary of State.'' '. 
I dislike unnecessary secondary legislation. I dislike statutory instruments that we do not need to consider. I dislike orders being made by Ministers, when there is no need for them to do so. I may not have defined the group of prosecuting authorities correctly in the amendment; the Minister may have others in mind that I have omitted. Primary legislation can properly set out the so-called designated prosecuting authorities and avoid further secondary legislation, as that will only list exactly the same group of authorities or bodies that are in the amendment. 
 I wondered whether the same principle might apply to Scotland, but I am reliably informed by my hon. Friend the Member for Orkney and Shetland, who knows about such matters, that in Scotland, invariably the practice is that whatever the prosecuting authority, the matter goes through the Lord Advocate or a procurator fiscal, so the same considerations do not apply to subsection (6). 
 The amendment defines a list for England, Wales and Northern Ireland. I hope that I have it right; if I have omitted a body, the Minister can tell me. [Interruption.] The hon. Member for North Down is about to say that I have made an obvious omission in the case of Northern Ireland.

Lady Hermon: I was not about to say that the hon. Gentleman had made a notable omission. There has, in fact, been a change, courtesy of the Justice (Northern Ireland) Act 2002, whereby we will no longer have a Director of Public Prosecutions for Northern Ireland. In fact, we will have a prosecution service for Northern Ireland, which will be known as the Public Prosecution Service for Northern Ireland—the PPSNI. That is not to be confused with the PSNI, which is the Police Service for Northern Ireland.

David Heath: I am grateful to the hon. Lady. I say in my defence that I had not spotted that distinction, nor had the Attorney-General in another place. News about what will happen in Northern Ireland obviously takes some time to travel to the English legal establishment. I accept therefore that my list is incorrect and will need to be amended. It is the principle with which I want the Minister to agree. What is the point of having secondary legislation, if something can be put properly into a Bill, avoiding the use of a great deal of extra paper? If his argument is that it would have to be amended regularly, I must say that new prosecuting authorities do not emerge like mushrooms overnight. A new prosecuting authority being designated for this purpose would be a fairly infrequent occurrence. In any case, the secondary legislation would have to be amended. I cannot imagine under what circumstances, other than a change of nomenclature, a prosecuting authority that had the powers would not have to be set up by primary legislation. The relevant amendment to the clause could be made to add that to the list. Will the Minister explain why we must have secondary legislation to
 produce a relatively brief list that is fairly confined in scope?

Nick Hawkins: I shall be brief.
 I understand where the hon. Gentleman is coming from, with the helpful correction made by the hon. Lady. I had no problem with his amendment No. 121 until I came to sub-paragraph (viii). I agree that it would be a good thing to have a list in the Bill. However, I cannot understand why, if we are making a list, we would not want a complete list including the amendments suggested by the hon. Lady to ensure that we did not have any regulation or order-making power for the Secretary of State. Perhaps the hon. Gentleman might consider that as an even more helpful modification.

David Heath: I put in sub-paragraph (viii) as a kind of get-out-of-jail-free card, in case I omitted something and so that the Minister would not tell me that it was obvious that in six months he would have to include it because I did not. I agree with the hon. Gentleman that sub-paragraph (viii) should not be used. The list should be complete, but if it is not complete there would be the alternatives of having something that would definitely need secondary legislation, or something that might need secondary legislation if the Government thought up a new wheeze. I would prefer the latter to the former.

Nick Hawkins: As I anticipated, the hon. Gentleman and I are arguing from a similar perspective. Both of us would prefer there to be a complete list in the Bill. I understand his temptation to include a get-out-of-jail-free card. I am, however, concerned that we should not allow more order-making powers for the Secretary of State. I want to ensure that such matters are as clearas possible in the Bill. That is normally the position of the hon. Members for Somerton and Frome and for Orkney and Shetland. They do not like Henry VIII-type clauses—those that fall to further order-making powers and secondary legislation—any more than we do. I support in general terms what the hon. Member for Somerton and Frome is up to, but I hope that the Government will see sense and get rid not only of their original version, but also sub-paragraph (viii) and give us a complete, exhaustive list, taking into account the views of the hon. Member for North Down.

Bob Ainsworth: I am enormously grateful to the hon. Member for Surrey Heath (Mr. Hawkins) for flushing out the intentions of the hon. Member for Somerton and Frome, who was pretending that the purpose of his amendment was merely to save parliamentary time. The hon. Member for Surrey Heath has managed to ascertain that that is not correct and that the hon. Member for Somerton and Frome is trying to be more restrictive.
 Under the 1990 Act, the designation of prosecuting authorities was to be done by statutory instrument. We see no reason to change that arrangement. The existing designations for England, Wales and Northern Ireland will remain in place. The concerns of the hon. Member for Somerton and Frome about our unnecessarily wasting parliamentary time are ill-founded. His noble aims are already covered. 
 I shall make the hon. Gentleman aware of a little-known piece of legislation. Section 17(2)(b) of the Interpretation Act 1978 provides that statutory instruments made under a provision that has been re-enacted would continue to have effect if they could be made under the re-enacted provision. The hon. Gentleman's concerns about wasting parliamentary time is not a problem; we will not have to go upstairs and put exactly the same list that is contained in his amendment through a statutory instrument. That will be automatically designated under the 1978 Act.

Lady Hermon: The Interpretation Act was enacted some years ago and the designation of the authorities is some 13 years old. Perhaps the Minister will ensure that in the designations referring to Northern Ireland, references to the Director of Public Prosecutions are removed and replaced with references to the Public Prosecution Service for Northern Ireland.

Bob Ainsworth: I turn to the other argument. Of course, there is a need to check that the designations are appropriate and up to date. From time to time, it may be necessary to change the list, but we believe that secondary legislation will be required for that purpose.
 It may be argued by the hon. Member for Somerton and Frome that there may be more clarity if we put the original list in the Bill, but in all fairness that is not the case. If changes were made, we would wind up with two separate lists—a list that arises from the additions that we make by secondary legislation and a list of designations under the amendment. 
 The hon. Gentleman is not saving us parliamentary time, which he tried to suggest was his main motive. It is appropriate that we make the designations. There may be more for me to make—for instance, the Financial Services Authority has prosecuting powers and may be needed. Therefore, it is far more appropriate and flexible that that issue be dealt with by secondary legislation. I ask the hon. Gentleman to accept that.

David Heath: My motives have been impugned without an alternative motive being adduced. I am not sure what the Minister considered that I was trying to do, other than to avoid the use of a statutory instrument. However, I am grateful to him for his assertion that the Interpretation Act will have effect. It is not a simple re-enactment and I do not know what flexibility there is within the Act for re-enactments. Even the guidance notes say that it develops and expands on section 3 of the 1990 Act. I anticipate that the Interpretation Act requires a law to be substantially the same as the law that it replaces, for the interpretation to work in the way in which the hon. Gentleman suggests. Obviously the hon. Gentleman has taken advice and that that is the case.

Bob Ainsworth: The designations are required to be the same. As I said, it may be that the designations need to be added to, in which case that will be done by statutory instrument. There is no added value in having part of the list under the Bill and the other part in a statutory instrument. The designations cannot be varied. They will have to be implemented by secondary legislation through statutory instrument.

David Heath: I understand that, but the designation was originally for the purposes of the previous enactment. The purpose under discussion is not identical, although it is related. I am trying to ascertain whether that is allowed for without the re-issue that the hon. Gentleman mentions. He said that he can deal with it in that way. Clearly it will have to be changed for the benefit of the change in the Northern Ireland legislation. He suggested that there may be future issues in response to the changes in financial regulatory systems. I still think that primary legislation is the best place for such matters, but I understand the argument advanced by the hon. Gentleman, and I do not want to waste parliamentary time. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I want to raise one brief point, Mr. Hurst. The Minister will be aware that we tabled amendment No. 18, which was subsequently withdrawn. Although we withdrew the amendment, so that it does not appear on today's amendment paper, there is a general point arising from the issue, which I think it would be relevant to raise now.
 We were concerned—the Minister will be aware that the matter was debated in another place on 13 January—that subsection (7) is limited only to requests made under the 2001 protocol on information on banking transactions. We withdrew the amendment because it was explained by the Attorney-General in another place 
 specifically why the limitation on banking needed to exist in light of experience from previous legislation. As I mentioned when Mr. Benton was chairing the Committee this morning, I have a background as a banking lawyer, and in banking law it is particularly important to state the grounds on which the evidence is considered relevant. For the record, will the Minister say whether it would be good practice to state the reason for the request on every request? I understand what the Attorney-General said in another place, but we are talking about what is good practice so it might be helpful for the Minister to say on record that wherever possible the grounds for request should be stated openly and that that provision should not merely be restricted to banking cases.

Bob Ainsworth: The hon. Gentleman appears to be asking for a far more restrictive arrangement for all of the requests for assistance. He wants the same arrangement that applies for banking assistance under clause 7(7).
 Clause 7(7) relates to requests 
''made in reliance on Article 2 of the 2001 Protocol''
 of MLAC. Such requests must, in addition to other material, 
''state the grounds on which the person making the request considers the evidence specified in it to be relevant for the purposes of the investigation.''
 The statement of those grounds is not necessary for the other requests under the clause. The hon. Gentleman 
 appears to want us to implement a set of requirements that would put a burden on the prosecuting authorities in this country—they would have to spell out the grounds in every case—but that would be restrictive and would certainly go beyond current legislation and all of our convention obligations. It would prevent us from seeking assistance in many cases where we are able to do so currently.

Nick Hawkins: I hope that I made it clear that I was not suggesting, as we did in another place, that we include that in the Bill. I understand what the Attorney-General said, but it would be helpful if the Minister were able to say that, in addition to the strict international obligations on the new arrangements for banking transactions, it is good practice in cases that go wider than banking for reasons for requests to be stated wherever possible. We do not have to introduce the burdensome restrictions that the Attorney-General was concerned about in responding to my noble Friend Baroness Anelay of St. Johns, but knowing that it is good practice to state the reasons will be helpful guidance to the courts.

Bob Ainsworth: With that clarification, I am more than happy to consider whether it is practical to introduce that obligation in that it does not impose unnecessary burdens. I do not want to impose burdens, such as having to state the details of the grounds on which the assistance is being sought, that could prevent us seeking assistance in cases where we ought to be able to do so.

Nick Hawkins: I am content with what the Minister has helpfully said. I do not want to pursue the matter further.
 Question put and agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Sending requests for assistance

Nick Hawkins: I beg to move amendment No. 19, in
clause 8, page 6, line 12, leave out 'In cases of urgency,'.

Alan Hurst: With this it will be convenient to discuss the following amendments:
 No. 122, in 
clause 8, page 6, line 15, leave out 
 'the Treaty on European Union' 
 and insert 'treaty obligations'.
 No. 20, in 
clause 8, page 6, line 16, at end insert— 
 '(4) The Secretary of State may by order make regulations prescribing the circumstances in which a situation is (or is not) to be deemed a case of urgency for the purposes of subsection (3).'.

Nick Hawkins: I can speak to these amendments briefly. As the Minister, Committee members and you, Mr. Hurst, will realise, amendments Nos. 19 and 20 are really alternatives to one another for the Minister and the Government to consider. We are probing the restriction in subsection (3), which amendment No. 19 would omit. As the Bill stands, the provision is restricted merely to cases of urgency, and we wonder
 whether that restriction is necessary. Amendment No. 20 would provide the other way of looking at the matter: the Secretary of State could make regulations saying what is urgent. As I have already said, we are not generally in favour of giving the Secretary of State more order-making powers. If I had to plump for one amendment, I would say that I am putting more of my effort into amendment No. 19, which would be helpful.
 On the question of what is urgent, perhaps it would be appropriate to mention that my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and I had some extremely interesting and useful discussions with those involved in such issues in Holland, which we visited a year or so ago. Colleagues who know me well will be aware that I always try to wear a tie appropriate to the occasion, and I am today wearing the tie that I was given—as was my hon. Friend—by the Netherlands Centre for International Police Co-operation, which is known in Dutch as Politie, in The Hague. 
 We spoke to senior officers in Holland who have to deal with some of those cases, which are sometimes urgent. There was quite a lot of urgency when we were there, because we were present on the day that the Dutch Government collapsed. As my hon. Friend will remember, one of the senior officials who briefed us from the Dutch Cabinet Office had to leave the meeting because something urgent had happened—his Government had just collapsed, and he had to rush back to the office. That is not the sort of urgency that we are talking about in the Bill, but hon. Members from both sides of the House of Commons benefit enormously from the international meetings that we have to consider such issues, and how such matters are dealt with in other countries. 
 I hope that the Minister can understand the basis on which we are putting the issue forward. We do not think that the provision should be restricted to ''cases of urgency''. It is not necessary to have that restriction in the Bill. 
 I shall briefly refer to the Liberal Democrat's amendment No. 122, to which, no doubt, the hon. Member for Somerton and Frome will speak in a moment, and which is in this group. The Liberal Democrats are suggesting replacing 
''the Treaty on European Union''
 with ''treaty obligations''. I do not know whether there will be a split on the Liberal Democrat Benches. In a previous Committee, on which I served with the hon. Member for Orkney and Shetland, I referred to the fact that he represented the Eurosceptic tendency in his party. I do not know where the hon. Member for Somerton and Frome comes from, but I was interested to see that the amendment was tabled. I wondered whether the hon. Gentleman was looking forward to yet further treaties to the current treaty on the European Union. If he is, I am suspicious about the amendment. We will hear what he has to say, but at present I am not persuaded of the thinking, as I foresee it, behind the amendment No. 122.

David Heath: The paranoia on the Conservative Benches knows no bounds; it is extraordinary.
 The purpose of putting forward the amendment is that the Bill is restricting something that is to the benefit of the United Kingdom authorities, and it can only be to their benefit to be able to make requests urgently to international policing bodies for evidence to use in UK domestic proceedings. It is hardly a matter for suspicion that we might ask someone with whom we have established a treaty for information for use in UK domestic proceedings. We also want to ensure that the provision is not restricted to the existing treaty. It is quite possible that new treaties will be signed, not only in the European Union, but with countries outside it, for mutual co-operation in judicial matters. It would be a shame if it were always necessary to amend legislation to update it for international policing bodies that may be established in the future. 
 I have in mind a particular body, the name of which I shall not attempt to pronounce. I read the report of the proceedings in the other place, and apparently various Members of that House ''helpfully'' pronounced it differently. We were told that in the transcript without an explanation of phonetics in Hansard to tell us the correct way in which to pronounce it. 
 Why limit the Bill to the existing treaty when any treaty would need ratification under British law if it were to take effect? The provision could refer simply to ''treaty obligations'' and, thus, make it open-ended. After all, we are asking for help from outside, not giving it, so the obligation is not on our authorities, but on others to help us. That seems to be a good idea, although others may consider that it is tainted if it comes from one source or another, and is used in British domestic proceedings.

Bob Ainsworth: The Government do not believe that it would be helpful to set out in regulations what constitutes an urgent situation for the purposes of the clause. It is difficult to see how legislation might successfully cover all the situations in which it might be necessary to make an urgent request for assistance or what would be gained by such legislation. In one case, the request might be urgent because an initial, non-urgent request had not been responded to; in another, the possibility of new evidence might come to light late in an investigation when a trial date had already been set.
 Subsection (3) implements article 6.4 of the mutual legal assistance convention, which provides that, in urgent cases, Interpol may be used. The convention does not define an urgent situation. We consider that it is right to maintain that degree of discretion. The European convention of 1959 provided that urgent requests could be transmitted via Interpol, but there was an omission from the 1990 Act. We intend to put that right by including such matters in the Bill. States are not permitted to send requests via Interpol, which is the basic reason why we are against the second amendment, which would remove urgency and allow people to go via Interpol for non-urgent cases. 
 The purpose of subsection (3)(b) is primarily to enable requests for assistance to be sent via Eurojust 
 or a national member of Eurojust in cases of urgency. Its wording reflects the wording of article 6.4 of the mutual legal assistance convention, which was drafted just before Eurojust was formally established. 
 Amendment No. 122 would widen the scope of the subsection by throwing it open to a body that is competent under any treaty obligation, not only the treaty on European union. We do not see the point of changing the wording in such a way. There will be provision in a treaty that may be agreed to ensure that existing arrangements of that nature under an old treaty in respect of the European Union treaty are preserved. We do not see the need to broaden the provisions to cover non-EU treaty obligations. 
 The function referred to is receipt of requests in urgent situations. That is a specific role, and the provision is included for the specific purpose of implementing the mutual legal assistance convention requirement. It is not designed to cover arrangements under any other international agreement. There are no other bodies outside the EU to which we would wish to extend this function. In those circumstances, all countries outside the EU will be able to use Interpol—as will we. The broadening that the hon. Gentleman suggests for future proofing against future treaty changes should be picked up in the process of those changes, and the widening is picked up by the role that Interpol rightly plays for non-EU countries.

Nick Hawkins: I am grateful to the Minister for giving way, and for the sensible manner in which he always approaches this matter. However, I wish to ask him about a point on the European aspect of this. Baroness Anelay of St. Johns pointed out that before the debate in another place on 13 January she had been looking at the Home Office's memorandum preparing for the temporary special European Council: she stated that the Home Office itself was saying,
''that public opinion is not yet always ready to accept that the judicial authorities and procedures of other member states are equivalent to our domestic courts, especially when our own nationals are involved.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC43.]
 The Minister and I have had debates about the Kalamata plane spotters, and the more recent case of David Wilson is another example involving the Greek courts. We have discussed that a lot. The European Union Committee of this House agreed with the Home Office analysis. Is there not a problem here, which the Minister must think about when he is talking about the European aspect of this?

Bob Ainsworth: I am struggling to see how some of those wider debates relate to our ability to use Eurojust or Interpol in cases where we need mutual legal assistance in urgent situations.
 The hon. Gentleman is a well-known Eurosceptic who is suspicious of all kinds of things that go on on the continent, but I am unsure why he is seeking to drag this out. He has tabled two amendments. One of them removes urgency: as I have said to him, we are not allowed to do that in any case. The other one provides for us to define urgency in the Bill. Neither of them forward his suspicion of the procedures that are followed in our EU-partner countries.

Nick Hawkins: I intervened at that point because I thought—and I hope that I am correct—that the Minister was responding to the Liberal Democrat amendment, which he will recall that I adverted to in my opening remarks on this. When he is addressing the whole issue of future European treaties, he must consider that he is in a slight difficulty because his own Department is putting forward memorandums to European Union Committees of this House that say that there is a problem here that we have not fully addressed and Eurojust is only just beginning to do so. This goes more to the Liberal Democrat amendment than to my issues about urgency.

Bob Ainsworth: The Liberal Democrat amendment appears to suggest that there may be future treaties that would designate bobbies and we should pre-empt and, in effect, future proof the legislation against those arrangements. That would be more threatening to the hon. Gentleman's position than what we are saying: the issue of what is picked up from existing treaties would have to be dealt with in any new treaty negotiations and designations would have to be carried forward. That is the more cautious route, in line with the very sensible Home Office position.

Nick Hawkins: I hear what the Minister is saying, but I do not think that he understands the import of what I was suggesting in my intervention, which is that we should be more cautious than the Home Office.

Bob Ainsworth: I am fully aware of that.

Nick Hawkins: The Minister says that now: if he really knows what I am getting at, perhaps he was being slightly disingenuous in his earlier response.
 This matter was debated in another place, and I think it will continue to be of concern, but at this stage I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Sitting suspended for a Division in the House. 
 On resuming— 
 Clause 8 ordered to stand part of the Bill.

Clause 9 - Use of evidence obtained

Nick Hawkins: I beg to move amendment No. 21, in
clause 9, page 6, line 33, leave out 'allowed' and insert 'make provision for'.

Alan Hurst: With this it will be convenient to discuss the following:
 Amendment No. 22, in 
clause 9, page 6, line 35, at end insert— 
 '(4A) The Lord Chancellor shall arrange for training in the law and procedure of such countries other than the United Kingdom as he considers appropriate to be given to judges and magistrates before they sit in proceedings where evidence is obtained pursuant to a request for assistance under section 7 is to be adduced.'.

Nick Hawkins: That is what I call cutting it fine.
 On amendment No. 21, we suggest that the words ''make provision for'' are better than the word ''allowed''. This is a small amendment, but I believe 
 that the debate in another place on 13 January, at columns GC43 and 44, is important and I look forward to the Minister's response. 
 Amendment No. 22 is important; we want it to be included in the Bill. Proposed new subsection (4A) would insert a requirement for the Lord Chancellor to arrange training for judges and magistrates in the law and procedure of countries other than the UK before they sit in relevant proceedings. That would be helpful. In another place on 13 January, at columns GC46 and 47, a comparison was made with the relevant provisions of the Nationality, Immigration and Asylum Act 2002. Although Lord Goldsmith, the Attorney-General, suggested that the amendment was not essential, it would be helpful if it were included in the Bill.

Bob Ainsworth: The hon. Gentleman may now sit down and get his breath back while he listens.
 The amendments seek further clarification on the gathering and use of evidence obtained abroad. The Government cannot accept either of them. In explaining why, it might be helpful if I provide the Committee with further detail about the procedures involved and the use to which evidence obtained is put. 
 UK authorities may request that evidence be taken in the form of sworn testimony from a witness overseas. That evidence will generally be taken in accordance with the law of the requested country, although the UK may request the country to follow certain procedures if they are a necessary prerequisite for such evidence to be admissible. Ultimately, admissibility cannot be established until the evidence is presented to the court. Under the MLAC, EU countries will be under a general obligation to comply with requests for necessary formalities and procedures to be followed, provided that they are not contrary to fundamental principles of their law. That will help to ensure that the evidence is taken in a way that is useful to the UK. 
 Once the evidence has been obtained in the form of a sworn witness statement, the requesting authority will decide what further action to take. In some cases, it might ask whether the witness is willing to travel to give evidence at a trial, at which they could be cross-examined. In other cases, it might seek to admit a written statement as evidence. Admissibility is for the court to establish, having taken into account the matters in subsection (4), such as whether the person to be represented was present when the evidence was obtained. 
 Amendment No. 22 is inappropriate for inclusion in the Bill. Many aspects of the Bill, including the provisions under discussion, require the training of the judiciary as well as of other prosecutors. That aspect of the Bill is not new, however, and replicates section 3 of the 1990 Act. Evidence from overseas has been used successfully in domestic prosecutions since 1991 and the courts have been capable of making the necessary provisions. I would therefore argue that to include the requirement for training in the Bill is unnecessary and would arise in many other pieces of legislation, which is the reason not to include it. We 
 cannot prejudge what is admissible—the court will decide that at the end of the day. That rules out the hon. Gentleman's amendment. The training requirements should not be in the Bill.

David Heath: We, the Liberal Democrat members of the Committee, added our names to the amendments of the hon. Member for Surrey Heath. Although I understand what the Minister said about the matter being for the discretion of the court, the relevant subsection gives guidance to the courts on how they should apply that discretion in determining the admissibility of evidence. That is a critical element: the question is not only whether there is a general omission for parties in proceedings to be legally represented, but whether they have had the opportunity so to do. The court should necessarily consider that key issue, which should not be a delimiting factor, when determining whether a piece of evidence is admissible.
 There are a limited number of occasions on which evidence obtained through the relevant mechanism will be admissible—it will be used largely for investigative purposes and not for probative purposes. I would have grave doubts about the admissibility of some types of evidence that might be adduced in court in the United Kingdom if obtained overseas. I am thinking, for instance of the changes that are currently under way through the Criminal Justice Bill concerning hearsay evidence. Multiple hearsay evidence obtained by witnesses abroad without corroboration seems somewhat remote from the concept of admissibility in the English court system, but there is no clear provision for excluding such evidence. The basic principle that it should be possible for someone to be legally represented and that the legal representative should have the opportunity to cross-examine on the basis of evidence to be used in court proceedings cannot be denied. 
 The hon. Member for Surrey Heath has a point in tabling the amendment, which is why we support it. With respect, I do not think that the Minister has quite answered the case, although that is a matter for the hon. Gentleman to pursue as the mover of the amendment.

Nick Hawkins: I am grateful for the hon. Gentleman's support. Not only has the Minister not dealt effectively with the point today—unusually, because his is normally thorough—but the question that Baroness Anelay of St. Johns put to the Attorney-General in another place, to which I referred in moving the amendment, has not been answered. Perhaps I can repeat that question to see whether the Minister will remedy the omission of the Attorney-General. Baroness Anelay said:
''The provisions of the Bill replicate those of the 1990 Act. I hope that the Minister will be able to tell the Committee something of the experience of the United Kingdom authorities and the courts in relation to the admission of evidence obtained abroad in the absence of legal representation.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC43.]
 The Attorney-General did not really answer the point. He said, using very general wording for someone in his distinguished position: 
''What is more, as matters stand at present, the strong likelihood is that the evidence that is obtained abroad will not be directly admissible in that form in any event. The evidence will be obtained, and if it is evidence that it is important to put to the defendant, the likelihood is that some way will have to be found of doing that. The most likely way is to try to get that person to give evidence in the United Kingdom or via the video link procedures mentioned in the Bill.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC45.]
 There are three ''likely's'' in that phrase. It is not really an answer to Baroness Anelay's request for specific examples of how the system has operated over the past 13 years. I realise that the Minister might not have that information here, but I hope that he will do us the courtesy of indicating, perhaps by intervening on me, that he will look into the matter. It was sensibly raised by Baroness Anelay in the House of Lords and was not answered, and it has not been answered by the Minister today. Perhaps he can do what he often does and write to the Committee to give us all the experience of the courts over the past 13 years. It is an important point.

Bob Ainsworth: The hon. Gentleman is right. I do not have with me evidence that suggests how individual cases have been handled during the 13 years since the enactment of the 1990 legislation. I have said that evidence must be presented to the court in a way that satisfies the court.
 Sitting suspended for a Division in the House 
 On resuming—

Alan Hurst: Order. We return to clause 9, amendment No. 21. Mr. Ainsworth was intervening. He may wish to extend that intervention.

Bob Ainsworth: I wish to satisfy the hon. Member for Surrey Heath that evidence would need to be in a form that would satisfy a court. There are various steps that could be taken if that was not the case, such as the use of video evidence, or persuading a person to give evidence. The hon. Gentleman seemed to be asking for evidence of how the regulation has worked over the last 13 years. I do not believe that we will be able to provide that. The evidence provided has been passed on to the prosecuting authorities and used in court cases, but has not been scored and analysed centrally. I will do what I can for the hon. Gentleman to see if there is any available evidence concerning the last 13 years. I do not think that there will be anything other than anecdotal evidence. Evidence has not been stored or analysed by the Home Office in order to come up with any analysis of how that evidence was provided, or whether it has always been provided in a satisfactory way. I will see whether there is anything, but I do not think that there will be.

Nick Hawkins: I am grateful to the Minister for his lengthy intervention, which has enabled me to gather my thoughts. The Minister has tried to be helpful and will try to bring forward whatever he can find. We will look at that with interest when the Minister writes to us. However, at this stage, I do not seek to pursue the matter any further. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 9 ordered to stand part of the Bill. 
 At the very least, the amendment can only make explicit that which is implicit. If it is the Minister's view that it is not necessary, it is certainly not unnecessary to make it clear that compliance with human rights legislation is something on which courts should take a view in considering an application. Although courts may be aware of their responsibilities in that area, it does no harm whatever to remind them—and perhaps the magistrate considering an application to judicial authority—that that is one consideration that they must take into account before arriving at a decision on a specific application. These are both serious amendments. They would add to the understanding of the Bill, and I welcome any comments from the Minister.

Nick Hawkins: I am pleased that the hon. Gentleman and the hon. Member for Orkney and Shetland have added their names to amendment No. 24. I shall return the compliment by saying that Conservative Members support the lead amendment, No. 123, and think it helpful to suggest that the word ''probative'' would add to the force of clause 10. It would then be much clearer that we are talking not merely about the vague word ''substantial'', but ''probative'', which has a technical meaning in the law of evidence.
 I hope that the Minister can say that he entirely accepts the amendment. That would be a rare event, but he has done it once or twice regarding recent pieces of legislation. We are talking about a one-word amendment, and as is so often the case the shortest amendments can have the most beneficial effect. There is no doubt that this part of the Bill would be stronger and clearer if the clause read ''substantial probative value'', not merely ''substantial value''. It would then mean something. I agree with the hon. Member for Somerton and Frome that the current wording does not mean much. 
 I now turn to amendment No. 24. As the Minister is aware, it addresses an issue that was debated in another place, where Baroness Anelay of St. Johns tabled an amendment to similar effect. It is far clearer to have the word ''will'' rather than ''is likely to''. Surely it should be absolutely clear that the evidence ''will'' be admissible. 
 I shall refer to what was said in another place, not solely by Baroness Anelay, but by Lord Goodhart on behalf of the Liberal Democrats. He made important points in debating this amendment on 13 January, in column GC52. He said that he was not altogether happy with the use of the phrasing, ''domestic freezing order'' because it was rather confusing, and that it might appear to mean that an order is a domestic freezing order because it applies to evidence in this country. However, that is not what it does. As we know, a so-called domestic freezing order is one made by a court in the UK for the protection of evidence in another participating country. Lord Goodhart had a good point. 
 In response to the points raised by Baroness Anelay and Lord Goodhart, the Attorney-General said that the provisions mirrored the Police and Criminal Evidence Act 1984, as if that were a complete answer to the point. As I explained earlier, I have professional reasons for appreciating his professional skills but, with great respect to him, I do not believe that that is a sufficient answer. Just because something is appropriate for the Police and Criminal Evidence Act in this country, that does not mean that it is appropriate under the Bill. 
 The Police and Criminal Evidence Act applies to what happens in this country. We are talking about the courts in this country. The Act does not apply to what takes place overseas. Our amendment would make it clear that the evidence must be clearly admissible. If the word ''probative'', under the Liberal Democrat amendment No. 123, were added to the Bill, it would undoubtedly strengthen it. I do not have the same worries about amendment No. 124, although I understand where the hon. Member for Somerton and Frome is coming from. I will listen with interest to what the Minister says. If he cannot accede to amendment No. 24 today, I want him to think carefully about whether it would strengthen the Bill. I hope, with even greater force, that the Government will at least accept that ''probative'' would be a helpful addition. It cannot be said that it would weaken the Bill. It would merely be a clarification. The same would be true of amendment No. 24.

Bob Ainsworth: It is at moments like this that I feel deprived that I am not a lawyer. As the clause is drafted, it includes conditions for obtaining a freezing order for evidence that is situated abroad that are as similar as possible to the conditions for obtaining a domestic search warrant established under the Police and Criminal Evidence Act 1984. That contains a requirement of substantial value. Amendment No. 123 would introduce dissimilarities between the freezing order conditions and those in PACE. Although the hon. Gentleman may not accept my answer, we believe that there is good sense in keeping the provisions for domestic freezing orders in line with PACE. It could be problematic if we depart from such requirements without good reason.
 Amendment No. 24 would require that the evidence be admissible in the United Kingdom, rather than likely to be admissible. The requirement that the evidence be likely to be admissible is contained for search warrants in the UK in PACE. Again, the Government do not consider that the conditions should be different simply because the evidence is situated abroad. They consider that, as with domestic investigation, it is sufficient that the evidence is likely to be admissible. The amendment would introduce an unnecessarily high requirement that would be difficult to prove to the court. At the stage of the making of an order, it will only be possible to ascertain that the material is likely to be admissible. Whether it is ultimately admitted will be a matter for the discretion of the court that deals with the case. 
 Amendment No. 124 would ensure that a freezing order could not be made if it was incompatible with the European convention on human rights. The 
 amendment is unnecessary because section 6(1) of the Human Rights Act 1998 imposes an obligation on the courts to comply with the convention rights. The Human Rights Act applies to all legislation and to include additional references to the European convention on human rights may imply that the provisions of the Act do not apply to a particular Bill or that the European convention on human rights always needs repetition in Bills if they are to take effect. That would be incorrect and clearly undesirable, and we are content that the provisions of the Bill are compatible with the ECHR. If, in a particular case, the court is not satisfied that the order would be ECHR compliant, it will not issue the order. 
 The hon. Member for Somerton and Frome sought to pray in aid the Joint Committee on Human Rights. He can read out a part of the submission of the Joint Committee, which says that certain ECHR rights are engaged in this part of the Bill. That is the normal language that is used when seeking to address such issues. However, he will know that the Joint Committee on Human Rights made representations, that we responded to them and that it was satisfied with the response. The response was public and accepted by the Joint Committee on Human Rights. It is not right for the hon. Gentleman to suggest, as he does, that in some way the Joint Committee is unhappy with the provisions of the Bill, when he knows that it accepted the response that was given.

David Heath: The hon. Gentleman is uncharacteristically over-sensitive today. I am not suggesting anything of the sort. The Joint Committee on Human Rights drew attention to such serious business and the best possible practice in drafting the Bill should be adhered to. He is no doubt about to tell me why it is necessary under clause 21 to do exactly what he says is not necessary under the clause.

Bob Ainsworth: I love it when people accuse me of being over-sensitive. It is not a weakness that I recognise in myself.
 I turn to the issue that the hon. Gentleman raised about the overseas freezing orders under clause 21. We need to refer to convention rights, because it is mutual recognition and the court could breach its own duties if it automatically recognised an overseas order. Therefore, when considering whether we should recognise an overseas order, there needs to be a requirement on the court to consider convention rights. With domestic rights, we are talking about our courts and the decisions that they take will be compatible with the Human Rights Act 1998. 
 The hon. Gentleman also sought to argue that in some way—this is where I feel deprived of a legal qualification—''substantial'' was not substantial. The clause, as written, requires that the evidence is likely to be of substantial value. I think that the hon. Gentleman came close to saying that that was not a substantial level at which to set the bar. He suggests the word ''probative''. I do not know about that. He said himself that he was not sure that it added very much. I am prepared to reflect on whether it would add anything to the clause. My understanding of the meaning of probative—the dictionary meaning—is evidential. Therefore, he is effectively suggesting that 
 we say that the evidence must be or is likely to be of substantial evidential value.

Nick Hawkins: I think that the word ''probative'' goes slightly further than that and the Minister has already helpfully said that he will reflect on the matter. It is not merely that it is of some evidential value, but it is of evidential value that helps to prove a case. That is the etymological origin of ''probative''—that it has some value towards proving the case.

Bob Ainsworth: But it is evidence. The hon. Gentleman is a refugee from the proceedings on the Proceeds of Crime Act 2002, as I am. We are not talking about confiscation for the purpose of depriving a criminal of his ill-gotten gains, but about the gathering of evidence. I will reflect on the matter. Obviously, there are legal minds that might have more—I was about to say twisted—understanding of ''probative'' than the ''Oxford English Dictionary'', but I am not certain that it would add anything. I think that we have set the clause at the right level. The evidence must be, or be likely to be, of substantial value.
 As the hon. Gentleman accepted, the threshold has been taken seriously and set at an appropriately serious level. However, he asks us to move it a little higher. I am not sure whether that is desirable, but I will certainly reflect on the points that he makes.

David Heath: I am grateful to the hon. Gentleman for what he has just said. If it is any comfort to him, I am not a lawyer either and I share some of his concerns about the use of language in a judicial context. However, I am aware, through long hours of Committee work, of the way in which the word ''probative'' is and has been used. Indeed, the concept of probative value is used in other legislation that is passing through the House at the moment. I hope that the hon. Gentleman will reflect on it.
 The word ''substantial'' is one of those words that, we are told when we try to insert it in amendments, has no real meaning because it cannot be interpreted by the courts. With respect, what is good for the goose must be good for the gander. However, I am grateful to the hon. Gentleman for considering the matter further. On that basis, I am prepared to withdraw the amendment. With regard to the Human Rights Act 1998, I am still puzzling over the reason for its being referred to in clause 21, not clause 10.

Lady Hermon: I am very grateful to the hon. Gentleman for giving way. May I help him out of his puzzlement? On this occasion, the Minister is absolutely right. There is a distinction, because the opening words of the European convention oblige every signed-up member state, including the United Kingdom, to guarantee the convention rights within its own jurisdiction. Therefore, the UK has an obligation under the convention to ensure that, on clause 20 and overseas freezing orders, it is compatible with those rights. However, we are talking about domestic freezing orders in another jurisdiction, and the UK cannot be required to enforce the convention rights outside its own jurisdiction. That is the distinction.

David Heath: I understand that entirely, but in each instance it is a court in the UK that considers whether the case that has been made to it is manifestly incompatible with convention rights. I understand that the initial request on one hand, or the implementation of the request on the other, will take place in a country beyond the UK's jurisdiction, so it is a matter for that country—which, as we know, is identified as a participating country in the context of the Bill, will come within Schengen and other protocols and will be a signatory to the European convention on human rights.
 However, at the same time, there is a point of consideration, which in each instance is in a British court, either in transmitting the request from a British authority or implementing the request from an overseas authority. It is at that point that I want to be satisfied that the British court has regard, as we are by obligation required to have regard, to the human rights convention. Quite correctly, the Human Rights Act 1998 assigns that obligation, so I accept that this is a belt-and-braces exercise, but I still cannot accept entirely why the reference is there in one instance but not in the other. I would prefer it to be there in both, so that everyone could clearly see that it was a major consideration to be taken into account. 
 The Minister says that that measure is not necessary and he gets very sensitive, as I said, about why I should even suggest that it might be necessary. I am sorry, but I am trying, in my inept way, to improve the Bill. It seems that in this case the Minister does not accept that I am doing so. I will seek leave to withdraw the amendment, but I should be grateful for any further aper¢us that the Minister receives on the subject. We may want to return to it at a later stage in our consideration. 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 125, in
clause 10, page 7, line 19, at end insert 'or customs officer'.

Alan Hurst: With this it will be convenient to discuss the following:
 Amendment No. 33, in 
clause 16, page 10, line 15, after 'constable', insert 'or customs officer'.
 Government amendment No. 87.

David Heath: This is a sudden rash of Customs officers. All three amendments would add exactly the same words, but to different places in the Bill. It is just pure luck that mine happens to be to the first clause under consideration, unlike the Conservatives' amendment No. 33, which would add the words ''or customs officer'' to clause 16, and Government amendment No. 87, which adds those words to clause 18.
 I have a track record of success in this area. I added the words, ''and customs officers'' to the Criminal Justice Bill earlier in the year. Those words were included through a Government amendment, because the Home Office, in its wisdom, had forgotten its colleagues in Customs and Excise and needed to give powers to its officers as well as to Home Office police 
 forces. I ask the Minister to consider my words carefully before they are rejected. 
 I have considered clause 10 carefully and I know that the Minister is trying to replicate as far as possible the position on the Police and Criminal Evidence Act 1984, which is why the words in the clause are set out as they are. However, it is not quite the same, because Customs officers derive their powers from other legislation, but they may also carry out investigations that require evidence to be acquired from abroad. They may also require that evidence in the same way that a police constable does. If they wish to do that, it would be an unnecessary bureaucratic procedure if a Customs officer had to go to the appropriate police force and ask for a sworn constable, with the permission of his senior officer, to go and make the request to a justice of the peace. 
 I do not believe that Customs officers have any other means by which they could apply the novel procedure of a domestic freezing order other than by that mechanism. The Minister may tell me I am wrong and that there is already analogous legislation elsewhere, but I do not think that there is. There are two options. Either we do not want Customs officers to be able to continue their investigations in such a way, which is not the case in the context of domestic law and investigations, or we have forgotten to add them to the subsection. 
 I can think of more instances in which it is likely that Her Majesty's Customs and Excise, rather than the police, would be carrying out an investigation that includes evidential material from overseas. I ask the Government to consider seriously whether there are not circumstances in which Customs officers and Customs and Excise would need to use this power, which they could use to their advantage. If that is so, the words that I have suggested must be added to the clause to give that some validity.

Nick Hawkins: I can be extremely brief because, as the hon. Gentleman rightly said, there are three amendments in the group: one from the Liberal Democrats, one from us and one from the Government. Those seek to introduce the words, ''customs officer'' to different parts of the Bill. I hope that the Minister will say, ''Let's have all three,'' because then we will be consistent throughout the Bill. However, I am sure he will bear in mind the hon. Gentleman's success in getting those words into the Criminal Justice Bill.
 I do not need to add to that, but there is a serious point, too. We always recognise that the Customs and Excise is an important part of the law and order enforcement procedure in this country. Whenever Customs officers ought to be included among the categories dealing with such matters, it would be helpful if they could be included. If the Government forgot them by mistake in the Criminal Justice Bill, perhaps the Minister will tell us they forgot them in this Bill. Perhaps that is why the Government tabled their own amendment to clause 18. If they have forgotten and they need to insert those words in clause 18, why not insert them in clauses 10 and 16?

Bob Ainsworth: How do I persuade the Committee to insert my ''customs officer'' and not those of others hon. Members?

Nick Hawkins: With difficulty.

Bob Ainsworth: We shall see.
 Amendments Nos. 125 and 33 would extend to Customs officers the powers given to police officers under the Bill. Amendment No. 125 would give Customs officers the power to apply for a freezing order and amendment No. 33 would give them the same power as a police officer to apply for a search warrant or production order in relation to their activities as part of the joint investigation team. In both cases, the amendments are unnecessary, not because the powers are conferred elsewhere, as the hon. Member for Somerton and Frome suspected, but because they are given to Customs officers by dint of clause 27(1)(b). He will see that clause 27(1) refers only to England, Wales and Northern Ireland. Clause 27(1)(b) says 
''For any function conferred on a constable under those sections to be exercisable instead in prescribed circumstances by a customs officer or a person acting under the direction of such an officer.''
 So we are in error, but we are in error with regard to Scottish jurisdiction, not to that of England, Wales and Northern Ireland. I would ask the hon. Members for Somerton and Frome and for Surrey Heath to accept that the issue is the structure of the Bill and their reading of it, rather than an omission on our part.

Lady Hermon: There is a very serious point here. I do not agree exclusively with the amendments. The Minister has addressed the extension to Customs officers, which occurs later in the Bill. There is a problem in Northern Ireland with paramilitary smuggling from the Republic of Ireland into Northern Ireland and the whole of the United Kingdom. The Assets Recovery Agency—a wonderful agency that was set up in February—needs to be able to apply for freezing orders, because there is paramilitary property outside the jurisdiction of the United Kingdom, specifically in the Republic of Ireland. That extension would be very helpful.

Bob Ainsworth: I am trying to recall the extensive powers that we have given to both the Assets Recovery Agency's office in Northern Ireland and its main office in London to conduct investigations. The extension of those overseas would require treaty capacity and the preparedness of the overseas state to recognise the breadth of power that we have enacted in our legislation. Many authorities do not do that, although the authorities in the Republic of Ireland have been fairly forward thinking in terms of confiscation. I shall look into the issue that the hon. Lady raises, both because I recognise that there is a real problem and because we wish to develop a good working relationship between the Criminal Assets Bureau in Dublin and the new Assets Recovery Agency in Belfast and London so as to be effective against such problems. We want to ensure that there is no gap.
 Let me return to the amendment. Customs officers can be given the power to apply for freezing orders and 
 to obtain search warrants and production orders in relation to international joint investigation teams in which they participate; there is no need to specify that power elsewhere as it is covered by clause 27(1)(b). 
 Amendment No. 87 is a Government amendment that relates only to the provisions in Scotland. Clause 18(1) provides that if a sheriff is satisfied that certain conditions are fulfilled, he has the power to grant a warrant authorising entry, search or seizure by any constable. Clause 18(2) provides that an application for such a warrant may be made only if it is in pursuance of a direction given under clause 13 or if an application is made at the request of an international joint investigating team. The investigating team may include constables and Customs officers, or it may comprise solely the latter. Clause 18(1) as drafted expressly provides that the authority for a search warrant can be issued only by a constable; that would cause difficulty should a team consist solely of Customs officers. I put it to the Committee that we are in error and need to correct the clause using my amendment, but that we do not need to do so in either of the other cases. I think, from the looks on hon. Members faces, that I have proven my case.

David Heath: The Minister has entirely proven his case. My only comment on this is that it was a slightly odd way of doing that, in terms of the drafting, because it seems unnecessary for the Treasury to have now to prescribe these powers by order, when it is clear that they are going to be necessary to Customs officers. We know that there will be instances where a Customs officer will wish to use the power under clause 10, which is to be exercised by a constable.

Bob Ainsworth: May I clarify the position?
 The hon. Gentleman knows that we have got a devolved settlement in Scotland, and clause 27 applies only to England, Wales and Northern Ireland because it goes far wider than the point that we are making now. The Scottish Executive rightly plans to make provisions for some of the matters covered by clause 27. We are not able to cover the Scottish situation in the same way that we are covering the situation in England, Wales and Northern Ireland.

David Heath: I understand the point about Scotland, and the need to make separate arrangements there. Even having heard the Minister's explanation and having now understood the way that the clauses in question interlock, it would be better to give the power ab initio to Customs officers and police officers on the same terms, because that will be necessary, and it is not sensible to have to require secondary legislation in order to extend that power at some stage in the future. We know that they will need that: why do we not just say so clearly in the Bill, rather than do it by secondary legislation?
 The Minister has proved his case to me—and, I suspect, to the satisfaction of the hon. Member for Surrey Heath—and I therefore beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I do not wish to detain the Committee for long, but I want to put on the record a couple of points that relate to the debate in another place to give the Minister the opportunity to respond. At this stage, I am perfectly happy for the Minister to write to me and other Committee members if he is not in a position to answer them this afternoon.
 I may have missed something, but when I was reading clause 10(1)(a) I was slightly puzzled by the phrase ''a listed offence'', which does not seem to be otherwise defined in this part of the Bill. Can the Minister shed some light on that? 
 As for clause 10(1)(c), I wonder how the Government envisage that it is to be determined how a court could be satisfied that a request ''will be made''. If a request has been made, that is something that we know about, and evidence can be brought. However, it seemed to me that that looked to the future, and it is slightly peculiar to state: 
''If it appears to a judicial authority . . . that a request . . . will be made''.
 Perhaps the Minister can explain, if not today, then in a letter, the sort of circumstances in which a court might be satisfied that a request will be made. I am always a little unhappy about legislation that contains that sort of conditionality. 
 There was quite a debate in another place on 13 January—columns GC56 and 57—about whether these sorts of applications should always go to Crown courts and the High Court. I do not want to take up the Committee's time by re-running that argument, but it occurred to me that one thing that was not mentioned in another place was where one is applying for injunctions in civil cases to try to freeze assets. That is the sort of thing that the Minister and I debated when we talked about the proceeds of crime legislation last year. When I was practising at the Bar and trying to get these orders they were known as Mareva injunctions or Anton Piller orders. There have been some developments in the law since I practised in that field, but it seemed to me that, as was suggested in another place, these sort of applications would be more appropriately made to the High Court or at the least to a Crown court, and it might not be appropriate for them to go to lay justices. In another place, it was suggested that they might more normally be made to stipendiary magistrates, district judges or deputy district judges. 
 I have a worry. On the one hand the Government might seem to be providing an opportunity for the lay magistracy to be involved. On the other hand, they are saying that they do not anticipate such things going to the magistrates, but to professional stipendiary magistrates. I hope that the Minister can deal with some of these points, although I reiterate that I do not mind if he cannot deal with them today, because I do not wish to take up too much of the Committee's time.

David Heath: I shall refer only briefly to the last point made by the hon. Gentleman about the debate that occurred in the other place on whether such applications should be made to a circuit judge rather
 than a justice of the peace. I shall now ingratiate myself with you, Mr. Hurst, by saying that I have no problem with justices of the peace dealing with these issues, when they are of a level with section 8 of the Police and Criminal Evidence Act 1984, as is envisaged by clause 10. I believe that the Attorney-General gave a reply to that effect in another place. He suggested that there had been some confusion with the Mareva orders, and that the Law Society, which was exercised by this particular issue, had perhaps misinterpreted the Bill with regard to legally privileged material.
 I accept entirely the Government's position on the matter, in that what they suggest specifically excludes, under clause 10(3)(d), 
''items subject to legal privilege.''
 However, that raises the question of what happens if the material concerned would normally fall within section 9 of the 1984 Act, because such applications would normally be made to a circuit judge rather than to a justice of the peace. Such a provision exists in PACE, but there does not appear to be an analogous provision in the Bill. Can the Minister tell us in what circumstances legally privileged material which was of substantial probative value in a domestic court proceeding would be held in another country? As I understand it, that is excluded from the provisions of the clause. Is that intentional on the part of the Government, and, if so, what is the rationale behind it? If it is not intentional, how can it be amended, and would the Government like to consider whether a further new clause would be needed to deal with that circumstance?

Bob Ainsworth: The clause provides for making domestic ''freezing orders'' to secure evidence overseas. It implements part of the framework decision on the execution of orders freezing property or evidence, enabling the UK to make freezing orders for the purpose of securing evidence. The framework decision is an instrument involving the concept of mutual recognition, rather than mutual legal assistance.
 A domestic freezing order is an order made by a UK judicial authority for protecting evidence in a participating country pending a mutual legal assistance request for its transfer to the UK. The clause specifies the circumstances in which a judicial authority in the UK may make a freezing order. 
 The clause is necessary because there is currently no provision for UK authorities to issue domestic orders that will be recognised and enforced abroad. It is possible to make a mutual legal assistance request to obtain evidence, and that happens frequently. Currently, any such request would be considered and the evidence obtained in accordance with the requested country's laws and procedures, not in accordance with our laws and procedures, as mutual recognition would provide that they should be. 
 Freezing orders will, however, enable faster and more efficient co-operation to occur, in circumstances where it is necessary to freeze evidence quickly. For example, a UK police team investigating a UK-based armed robbery might obtain intelligence that the weapons used in the robbery were located abroad. 
 The UK police would be able to get a court order to search for the weapons at a specified location. The authorities abroad would be required to notify an initial decision on execution of an order as quickly as possible, and whenever practicable within 24 hours of receipt, as required by article 5 of the framework decision. In contrast to a request for mutual legal assistance, there are limited grounds on which such an order can be rejected in the receiving state, provided it meets the conditions specified in the framework decision. For example, it must be accompanied by a properly completed certificate and relate to relevant offences. 
 The hon. Gentleman was concerned about the list. The list is in the framework decision, which requires investigation of proceedings relating to listed offences. Member states are required to recognise a freezing order only if it relates to one of the offences listed in the framework decision. The offence is punishable in the issuing state by a maximum sentence of at least three years.

Nick Hawkins: Will the Minister give way?

Bob Ainsworth: I give way. I know the road down which we are travelling.

Nick Hawkins: I am sure that the Minister can anticipate me, but if the offence is listed in the framework directive, surely it should be in the Bill.

Bob Ainsworth: That is a similar debate to the one that we had during consideration of the Extradition Bill. It is well-trodden ground between us. The list is in the framework document. At the moment, I see no reason why it should be in the Bill. We did not include such a list in the Extradition Bill, and I do not see why we should define that treaty obligation in this Bill.

David Heath: A listed offence clearly must be defined, which it is in clause 28(5). Happily, we are therefore in accord.

Bob Ainsworth: The hon. Member for Surrey Heath will see a list of offences in clause 28.
 The provision is not about freezing assets, but about evidence. The courts to be used must be the same courts that deal with requests for evidence. Those are orders for evidence, not for freezing assets or for asset recovery. The court that is making the request is the appropriate court. 
 The hon. Gentleman invites me to write to him in response to his other points, which I shall do to save the Committee's time. 
 Question put and agreed to. 
 Clause 10 ordered to stand part of the Bill.

Clause 11 - Sending freezing orders

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: Again, I want to raise a couple of points in a couple of sentences so that they are not missed when the Bill is considered further. I am happy for the Minister to write to me and to other members
 of the Committee rather than taking up the Committee's time this afternoon.
 The clause deals with how domestic freezing orders, once made, will be transmitted to the country where the evidence is. Subsection (1)(b) states 
''any authority recognised by the government of the country . . . as the appropriate authority''.
 The Minister has just talked about the well-trodden ground between us when we discussed the Extradition Bill. There may be problems with some countries that might recognise authorities as appropriate authorities in those countries, but we in this country might not be happy with them. Will the Minister say what the safeguards are? 
 On 23 January, on the second day in Committee in another place, at columns GC61 to 64, there was an extensive debate about time limits. Lord Carlisle of Bucklow made some points that I do not believe were fully answered by the Government in the other place. I should be grateful if the Minister would take on board the fact that Opposition Members share the concerns expressed by Lord Carlisle. The Minister probably cannot respond in detail today, but once again I hope that he can write to me.

David Heath: Again, I pick up on the hon. Gentleman's comments. First, I do not care what the arrangements are in another country for acquiring the evidence used in the procedures, provided they are in line with international treaty obligations and the domestic arrangements of that country. They can send the broker's men to gather the evidence as far as I am concerned, provided it is available for use in a British court. It sometimes seems that the hon. Member for Surrey Heath is so suspicious of overseas authorities that he does not want them to do what we want them to do on our behalf. I do not share his view. However, I share his concern on time limits, and I note that during proceedings in another place, in column GC63, the Advocate-General—[Interruption.] I am sorry; wrong country and wrong jurisdiction. I meant the Attorney-General. He said:
''We are sympathetic to the idea that there should be a time limit. We shall consider that point, and the drafting, and bring back a proposal.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC63.]
 We are waiting for that proposal. We hope very much that the Minister will now give that same assurance to the Committee, and that by Report he will have considered the matter and will have acceded to the view expressed by the Government in that instance. Perhaps he will consider bringing back a proposal for our consideration.

Bob Ainsworth: I will. However, the time limit that the hon. Gentleman asks for is there in clause 11(3), which states:
''The judicial authority is to send the order to the Secretary of State or the Lord Advocate before the end of the period of 14 days beginning with its being made.''
 The hon. Member for Surrey Heath does not like mutual recognition—a point recognised by the hon. Member for Somerton and Frome. It is for us to decide in this country what the appropriate authority 
 is for receiving and making orders of that kind. It is for authorities overseas to take that decision under mutual recognition. We cannot impose terms on them, and we would not expect them to impose terms on us. None the less, I will write to the hon. Member for Surrey Heath, and make him aware of what we envisage in terms of the authorities that will use those powers, so that he can make Eurosceptic capital out of my letter. 
 Question put and agreed to. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - Variation or revocation of freezing orders

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: This is slightly different because, in another place, there was no debate on this clause. It was passed on the nod for the sake of speed. The Committee will be pleased that I will once again be very brief. However, there is one question that I wish to put to the Minister. It is a serious question, which he may want to discuss with his officials. I am happy for the Minister to write to me, instead of responding today.
 Clause 12 deals with variation or revocation. The provisions in general terms seem absolutely fine. However, at the moment, any person who is affected can apply to vary or revoke under clause 12(2)(d). That is fine, after the original order has been made. I am seeking reassurance that any person who might be affected will have the right to be heard during the consideration of the original application. Let us suppose that an application is being made, and people who might be affected come to hear about it. That is not beyond all likelihood. If the person who might be affected by it is aware that an application is being heard, there is nothing specific that gives that person the right to be heard—locus standi, as lawyers 
 call it—during the original application. They have the right to come along afterwards and be heard on an application to vary or revoke, but that could lead to more court time and more court costs, after the event. I would like the Minister to consider with his officials whether it could be made clear—perhaps through a small Government amendment—that as well as having the right to apply to vary or revoke, a person who may be affected will have rights of audience and rights to be heard when the original application is considered. As I read it, that is not clear in the Bill.

Bob Ainsworth: Let us suppose that the order is made on a person who is outside the UK. The hon. Gentleman put the point that that person might have a view about it.

Nick Hawkins: I am not talking about the person who is the subject of the order, but people who are affected by the order—those whose assets might be affected. They are referred to in the Bill. Rather than the person who is the subject of the order, someone else who is affected by it can apply to vary or revoke it. However, the Bill does not cover someone who may be affected by the order, who lives within the jurisdiction and becomes aware of the order. That person does not apparently have the right to be heard in the English language.

Bob Ainsworth: The hon. Gentleman knows that there will be many circumstances in which such a right will not be available to people. However, there may be circumstances when it is. I do not believe that such matters are covered under the Bill. I shall examine its provisions and write to him.
 Question put and agreed to. 
 Clause 12 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at twenty-four minutes to Six o'clock till Thursday 12 June at ten minutes past Nine o'clock.